Tuesday, August 25, 2009

The Dead Innocent Guy

Among some (many? a few? one lady in Dubuque, Iowa?) abolitionists, I'm known for disliking claims of innocence.

Frankly, I'm never even sure what it means.

There's legal innocence, but that's simply a failure of the state to prove guilt beyond a reasonable doubt or the success of an affirmative defense. You know, Mary did stab Elmo with the ice pick, but it was self-defense so she's legally innocent. Lots of people who do things that are ordinarily criminal are found not guilty (i.e., legally innocent) either because the jury got it wrong or the state screwed up or there was some legally acceptable defense. But that doesn't mean you want to have them over for dinner.

There's presumptive innocence, which comes at an earlier stage, has only to do with trials, and says that the accused will be presumed innocent unless and until the state proves guilt beyond a reasonable doubt. Even the guiltiest folks (whatever that means and whoever they are) are presumed innocent before there's a finding of guilt made.

There's moral innocence, but outside newborns and perhaps Jesus or the Dalai Lama, that's a pretty limited group of people - and not who we're after.

We usually mean something like factual innocence. It wasn't self-defense because Mary did not, in fact, take an ice pick to Elmo. But what if Mary handed Steve the ice pick? Is she factually innocent? Might depend on the charge and the local law.

Innocence, you see, is not as simple a thing as it sounds.

That's why the exoneration lists are so controversial. The Death Penalty Information Center maintains what you might think of as the master list of people exonerated from death row. The current total is 135. That's a useful number we abolitionists like to bandy about, but as retentionists point out, it's a list of the legally exonerated, not necessarily the factually innocent, the wrong guy, the we just flat out got it wrongs. As Ward Campbell points out in an over-the-top but not entirely wrong condemnation of the list, it can't fairly be taken as a who's who of the innocent condemned.

Many of the cases abolitionists like to tout, Mumia Abu Jamal is a prime example, simply don't prove the claim. I mean, he may not have done it. But he may. Here in Ohio, John Spirko spent a couple of decades on death row for a murder that, frankly, there's no credible evidence he committed. But the absence of evidence of guilt isn't the same as actual proof that he's the wrong guy.

I like, in this context, to talk about O.J. and the glove. (You know, the one that if it didn't fit you had to acquit.) Let's assume the cops planted it. Does that mean he didn't kill Nicole? Most of the time when the cops lie and make up evidence it's to make a case stronger against someone they believe (often correctly) is guilty. It's far less common - not unheard of, but less common - for them to fake evidence with the intent of convicting the innocent.

Finally, of course, there's the problem that when we put our eggs in the innocence basket, we risk a whole lot of cracked yolks.

Take Roger Coleman, please. He conned a whole lot of good, committed people into believing that if they could just test his DNA they'd get the proof of the dead innocent guy, you know the one Scalia says doesn't exist, the executed person who is incontestably innocent. The Commonwealth of Virginia fought for years to prevent the testing (which tells you all you need to know about how confident it was that the right guy had been killed). And then, well, turns out Coleman did it. As more than one Virginia capital lawyer said, Coleman gave innocence a bad name.

And yet we keep searching. The elusive incontestably dead innocent guy is a quest precisely because (a) we know dead innocent guys are out there and we have a pretty good idea of who at least some of them are; (b) when we find him, or her, we'll have the hard evidence of something that will sure look a lot like what Harry Blackmun called "simple murder"; (c) personalizing the dead innocent guy, not just "there's more than one out there," but "We killed that innocent man over there," will move people. As Josef Stalin said,

A single death is a tragedy. A million deaths is just a statistic.

The movement from statistic to tragedy may be the movement from retention to abolition. Indeed, it was the execution of particular and demonstrably innocent men that led to abolition in Michigan more than 150 years ago, to abolition in England far more recently.

We have another candidate.

Cameron Todd Willingham was executed by the good people of Texas in February 2004 for the arson murder of his three children. In December of that year, the Chicago Tribune published the result of its review of the case and concluded that there was no credible evidence the fire was, in fact, arson. It could as easily have been an accident. The Innocence Project was next. It hired a panel of arson experts and concluded too, in a report issued in 2006, that Willingham was probably innocent and called on Texas to investigate. Last year, Texas agreed to investigate. And now we have the results. Here's how the Chicago Tribune's article begins.

In a withering critique, a nationally known fire scientist has told a state commission on forensics that Texas fire investigators had no basis to rule a deadly house fire was an arson -- a finding that led to the murder conviction and execution of Cameron Todd Willingham.

The finding comes in the first state-sanctioned review of an execution in Texas, home to the country's busiest death chamber. If the commission reaches the same conclusion, it could lead to the first-ever declaration by an official state body that an inmate was wrongly executed.

Indeed, the report concludes there was no evidence to determine that the December 1991 fire was even set, and it leaves open the possibility the blaze that killed three children was an accident and there was no crime at all -- the same findings found in a Chicago Tribune investigation of the case published in December 2004.

Willingham, the father of those children, was executed in February 2004. He protested his innocence to the end.

It's not that incontestable case of the dead innocent guy. But it's getting close. At some point the weight of the likely mistakes starts to weigh on you.

So now what? What will Texas do? Will it concede that it killed a likely innocent man? Will he get a posthumous pardon? Or will the state say that all these experts, including the one it chose to review the case, are blowing smoke, bury the doubts, airbrush out the warts?

I'm sorry to say that the smart money is on the smoke and the airbrush.

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About Me

Criminal defense lawyer, public defender, civil libertarian (former Legal Director of American Civil Liberties Union of Ohio), anti-death penalty activist, public speaker.
After many years in private practice, I'm now a public defender in the Cuyahoga County Public Defender's Office.
My first career was English Professor. I studied medieval and renaissance English Literature, taught literature, film, and composition. I've been a film critic.
NONE OF WHAT APPEARS IN THIS BLOG SHOULD BE TAKEN AS LEGAL ADVICE.
ALSO, PLEASE NOTE THAT THE STUFF I WRITE IS MINE ALONE. I STAND MORE OR LESS BEHIND IT, BUT I DO NOT SPEAK FOR ANY OTHER LAWYER OR ANY GROUP OF LAWYERS AND CERTAINLY NOT FOR THE OFFICE OF THE CUYAHOGA COUNTY PUBLIC DEFENDER.